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Grosinger v. J.G.

Supreme Court of North Dakota

August 25, 2015

In the Matter of J.G. Brian D. Grosinger, Morton County Assistant State's Attorney, Plaintiff and Appellee
v.
J.G., Defendant and Appellant

Appeal from the District Court of Morton County, South Central Judicial District, the Honorable James S. Hill, Judge.

Brian D. Grosinger, Assistant State's Attorney, Mandan, N.D., plaintiff and appellee.

Kent M. Morrow, Bismarck, N.D., for defendant and appellee.

Gerald W. VandeWalle, C.J., Daniel J. Crothers, Lisa Fair McEvers. I concur in the result. Dale V. Sandstrom. Opinion of the Court by VandeWalle, Chief Justice. Kapsner, Justice, dissenting.

OPINION

VandeWalle, Chief Justice.

Page 109

[¶1] J.G. appealed from an order finding he continues to be a sexually dangerous individual and civilly committing him to the care, custody, and control of the executive director of the Department of Human Services for placement in the least restrictive facility or program. Because the district court's findings of fact are supported by clear and convincing evidence, we affirm.

I

[¶2] In November 2002, J.G. was initially committed as a sexually dangerous individual based on the crime of indecent exposure which occurred when he was 12 years old. J.G. has unsuccessfully petitioned for discharge numerous times since his initial commitment, and Matter of J.G., 2013 ND 26, 827 N.W.2d 341, is the latest reported decision of this Court concerning J.G. In that case, this Court held the 2002 finding that J.G. engaged in sexually predatory conduct was res judicata and could not be relitigated. Id. at ¶ 11. We also affirmed the district court's reliance on the opinion of Dr. Robert Lisota, the State's expert witness, in finding J.G. was likely to reoffend based on a number of dynamic risk factors he found to be " problematic." Id. at ¶ 13. J.G.'s expert witness, Dr. Stacey Benson, had opined that use of actuarial risk assessment instruments was inappropriate because they are intended for juveniles, id. at ¶ 12, but we concluded the court's finding J.G. was likely to reoffend was not clearly erroneous because the court " found Dr. Lisota's testimony more credible." Id. at ¶ 15. We recognized that J.G.'s cognitive difficulties made it more challenging for him to complete his treatment program, but the danger he " presents remains paramount." Id. at ¶ 14.

[¶3] After an annual review hearing in March 2014, during which Dr. Lisota and Dr. Benson again testified, the district court found J.G. continued to be a sexually dangerous individual and ordered that he be treated at the Community Transitional Center (" CTC" ) at the State Hospital as the least restrictive environment, based on the recommendation of Dr. Benson. The State moved for a new trial, arguing the court's findings were insufficient to sustain the commitment and the CTC is not an appropriate alternative treatment program.

[¶4] Another hearing was held before a different judge in November 2014 during which additional testimony was provided by Kerry Wicks, the clinical director of the sex offender program and clinical administrator for all clinical services at the State Hospital. He testified no one has been placed in the CTC without first completing the sex offender treatment program and J.G. has not progressed to that point. Based on the evidence provided at the March 2014 hearing and Wicks' testimony, the district court granted the State's motion, again found J.G. remains a sexually dangerous individual, refused to order his placement at the CTC, and ordered the

Page 110

executive director of the Department place him in the least restrictive treatment facility or program.

II

[¶5] J.G. argues the district court's decision is not supported by clear and convincing evidence.

[¶6] In Interest of Johnson, 2015 ND 71, ¶ ¶ 4-5, 861 N.W.2d 484, we explained our standard of review in these cases:

A " modified clearly erroneous" standard of review is employed by this Court when reviewing the civil commitment of sexually dangerous individuals under N.D.C.C. ch. 25-03.3. Matter of J.T.N., 2011 ND 231, ¶ 6, 807 N.W.2d 570.
We will affirm a trial court's order denying a petition for discharge unless it is induced by an erroneous view of the law or we are firmly convinced it is not supported by clear and convincing evidence. In reviewing the trial court's order, we give great deference to the court's credibility determinations of expert witnesses and the weight to be given their testimony. The trial court is the best credibility evaluator in cases of conflicting testimony and we will not second-guess the court's credibility determinations.
Matter of Wolff,
2011 ND 76 796 N.W.2d 644
At a discharge hearing, the state has the burden of proving by clear and convincing evidence that the committed individual remains a sexually dangerous individual. N.D.C.C. § 25-03.3-18(4). To prove a committed individual remains a sexually dangerous individual, the State must show three statutory elements: (1) the individual has engaged in sexually predatory conduct, (2) the individual has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction, and (3) the individual's condition makes them likely to engage in further acts of sexually predatory conduct which constitute a danger to the physical or mental health or safety of others. Interest of Corman, 2014 ND 88, ¶ 8, 845 N.W.2d 335; see also N.D.C.C. § 25-03.3-01(8). In addition, substantive due process requires proof that the individual has serious difficulty controlling his behavior. Matter of J.G., 2013 ND 26, ¶ 9, 827 N.W.2d 341. This Court has also construed the definition of a sexually dangerous individual to " require a nexus between the disorder and dangerousness, which distinguishes such an individual from other dangerous persons." Id. (citation omitted).

[¶7] The first two requirements are not challenged here because the sexually predatory conduct issue is res judicata and the expert witnesses agreed J.G. had mental and personality disorders. J.G. contends there is not clear and convincing evidence to satisfy the requirement under N.D.C.C. § 25-03.3-01(8) that he is " likely to engage in further acts of sexually predatory conduct which constitute a danger to the physical or mental health or safety of others" and the due process requirement that he has serious difficulty controlling his behavior.

[¶8] The position of the experts in this case mirrors in many respects the positions they took in J.G., 2013 ND 26, 827 N.W.2d 341. According to Dr. Lisota, although J.G. has made some progress, he has not satisfactorily progressed in the sex offender treatment program. Dr. Lisota opined J.G. continues to pose a high risk of reoffending and again ...


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